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PETITIONER: RAGHUBANS DUBEY

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 19/01/1967

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. HIDAYATULLAH, M. VAIDYIALINGAM, C.A.

CITATION:  1967 AIR 1167            1967 SCR  (2) 423  CITATOR INFO :  R          1977 SC1172  (17)  R          1978 SC1568  (4)  R          1979 SC 339  (3,10)

ACT: Code  of Criminal Procedure (Act 5 of 1898), ss. 190(1)  (b) and  2O7-Magistrate taking cognizance of offence  on  police report-Jurisdictlion to proceed against accused not sent  up by police. Discharge  of  accused-Whether possible,  when  accused  not included in the charge-sheet.

HEADNOTE: The  police  investigated  into  a  complaint  against   the appellant and others, accepted the appellant’s plea of alibi and  filed a charge sheet against the others  for  offences, under ss. 302, 201 and 149 I.P.C., before the Sub-Divisional Magistrate.  The Magistrate recorded that the appellant  was discharged -and transferred the case for enquiry to  another Magistrate, who, after examining two witnesses, ordered  the issue  of a non-bailable warrant against the appellant,  for proceeding against him along with the other accused under s. 207-A  Cr.   P.C. The order was confirmed  by  the  Sessions Court and High Court. In appeal to this Court, HELD:(1)  There could be no discharge of the appellant  when he  was  not  included as an  accused  in  the  charge-sheet submitted by the police. [426 C] (2)The  appellant could be proceeded against along with  the other accused under S. 207-A Cr.P.C. [426 B] The  Sub-divisional Magistrate had taken cognizance  of  the offence  upon  the written report of the  police,  that  is, under  s. 190(1)(b), Cr.  P.C Therefore, the proceeding  was instituted  under s. 207(a) and not under s. 207(b)  Cr.P.C. The cognizance, however, was of the offence only and not  of the  offenders.  Having taken cognizance of the offence,  he had to find out who the real offenders were, and if he  came to the conclusion that apart from the persons sent up by the police some other persons were involved.  It was his duty to proceed  against those persons also.  The summoning  of  the appellant   as  an  additional  accused  was  part  of   the

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proceeding  initiated  by  his  taking  cognizance  of   the offence. [427 B-C, 4Z8 C-D] Pravin  Chandra Mody v. State of A.P. [1965] 1  S.C.R.  269, followed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 189 of 1964. Appeal  by special leave from the judgment and  order  dated April 10, 1964 of the Patna High Court in Criminal  Revision No. 896 of 1961. Danial Latifi and K. K. Sinha, for the appellant. R.   N. Sachthey, for the respondent. 424 The Judgment of the Court was delivered by Sikri,  J. This appeal by special leave is directed  against the  judgment  of  the High Court  of  Judicature  of  Patna dismissing  Criminal Revision No. 896 of 1961 filed  by  the appellant   Raghubans   Dubey.   The  relevant   facts   for appreciating the points raised before us are as follows :- The  appellant  was  one  of the  15  persons  mentioned  as assailants  in the First Information Report dated  July  29, 1959,  lodged by one Raja Ram Sah.  The police  investigated the  case and during the investigation the appellant set  up an alibi.  The police accepted the alibi and did not include his  name as an accused in the final report under s. 173  of the  Code  of Criminal Procedure.  His  name  was,  however, mentioned  in  column No. 2 of the Charge  Sheet  under  the heading "not sent up".  On April 5, 1961, the Sub-divisional Magistrate passed the following order               "C.  S. No. 12 dated 234-3-61 u/s  149/302/201               1. P. C. received against the accused noted in               col. 3 and 4 of C. S.               Cog.  taken u/s 149/302/201 1. P. C. and  case               transferred  to Sri L. P.  Singh  Magt........               class for enquiry under Chapter XVIII Cr.   P.               C.   Accused   not  sent  up  for   trial   is               discharged." On  transfer,  Shri  L. P. Singh, Magistrate,  took  up  the hearing of the case on May 1961.  In the meantime a petition had been filed on April .1, 1961, praying that the appellant be summoned by the Magistrate.  On May 2, 1961,.   Jagannath Sao,  P.  W.  1, was examined and  in  his  examinations  he implicated  the  appellant as one of the  persons  who  were present  in  the mob which is alleged to have  killed  Rupan Singh.  On the same day Mahesh Sao, P. W. 2, also implicated the appellant in his examination-in-chief.  It appears  that the  counsel  for Raja Ram Sah, the person  who  lodged  the F.I.R., requested the Magistrate to summon the appellant  as well  for trial, as prayed for in the petition  dated  April 11,  1961,  The  Magistrate,  after  hearing  the  Assistant District Prosecutor as well as the counsel for the informant and the accused, passed the following order                "  Raghubans  is  named in F. I.  R.  and  as               submitted  by A. D. P. 5 witnesses have  named               him before police and P. W. 1 examined  before               me has also named him.  So in my opinion it is               , proper to add Raghubans.  Dubey also in this               enquiry  as  accused.   ’At  this  stage   one               petition  has been filed by lawyer of  accused               that cross-examination of P.W.s  be allowed to               be  done after appearance of Raghubans.   This               contention is quite

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             425                reasonable  otherwise cross-examination  will               have  to  be done again  after  appearance  of               Raghubans   and  so  prayer  .of  defence   is               allowed.  Examined P. W. 2 also in chief.   He               has also named Rahgubans to be a member of the               mob   of  these  accused  at  the   time    of               occurrence.  So issue non-bailable W/A against               Raghubans Dubey according to address given  by               P.W. today as the allegation against Raghubans               be  very serious one.  Send the  process  peon               returnable  by 3-6-1961.  Other  accused  will               reattend." The  appellant  challenged this order  before  the  Sessions Judge.  it was urged before him that the Magistrate  had  no jurisdiction  to  summon  the  appellant  because  the  Sub- divisional  Magistrate  had  already  dismissed  a   protest petition  on  merits.   The  Sessions  Judge  rejected   the argument  and  held that it was open to  the  Magistrate  to summon any person against whom he found sufficient  evidence in the case. The appellant then filed a criminal revision before the High Court.  Before the High Court it was urged, first, that  the petition  dated  April  11,  1961,  was’;,  a  petition   of complaint  and,  therefore, summoning the appellant  on  the basis of a petition of complaint would result in a  separate complaint  case  and he could not be tried  along  with  the other  accused  under  s.  207A  of  the  Code  of  Criminal Procedure.   Secondly,  it was urged that the order  of  the Magistrate was irregular as he had summoned the appellant on the same grounds on which the Sub.divisional Magistrate  had discharged him.  On the first point the High Court held that the  order  of the Magistrate did not result in  a  separate complaint  case against the appellant as "the  present  case was  instituted  when  the  sub-divisional  Magistrate  took cognizance  of  an  offence  reported  by  the  Police,  and therefore, the case shall be deemed to have been  instituted oft the police report." The High Court further observed that "it is’ therefore, clear from the language of section 190 of the Code that the Magistrate takes cognizance of an  offence made  out  in  the police report or in  1  the  petition  of complaint  and there, is nothing like taking  cognizance  of the  offenders at that stage.  It has to be decided  on  the materials on record as to who actually the offenders may  be only after cognizance of the offence has been taken.  On the facts  of  the instant case, therefore,  cognizance  of  the offence has been taken on a police report, and the order  of the transferee Magistrate summoning Raghubans Dubey does not amount  to taking cognizance of an offence." On  the  second point the High Court held that the Magistrate did not summon the  appellant only on those grounds which were  before  the Sub-divisional Magistrate as the materials before the 426 two  Magistrates  were not  identical.   The  Sub-divisional Magistrate  had  acted on the Police report  alone  but  the Magistrate  took into consideration the evidence of the  two prosecution witnesses examined in court as well. The  learned counsel for the appellant, Mr.  Danial  Latifi, raises two points before us; first that the discharge of the appellant  by  the order dated April 5, 1961,  by  the  Sub- divisional  Magistrate  was final, and  secondly,  that  the proper  procedure to be observed on the facts of  this  case was  not under s. 207A but under the subsequent sections  in Chapter  XVIII  of the Criminal Procedure Code.  We  see  no force in these points.

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Regarding  the first point NV.  Latifi urges  that  judicial refusal  to summon amounts to discharge.  There is no  force in, this contention because there cannot be any question  of discharge  when  the  appellant was not sent’  up  upon  the charge-sheet submitted by the police. Coming  to the second point the learned counsel for the  ap- pellant  contends that no proceeding was instituted  against the  appellant on a police report within the meaning  of  s. 207A  of  the  Code because the  appellant’s  name  was  not included  in  the  charge  sheet.   He  says  that  although cognizance  might  have been taken of an  offence  under  s. 190(1)(b)  no proceeding as such was instituted against  the appellant at this stage; the proceeding was instituted  when a non-bailable warrant was issued against the appellant  and this proceeding was instituted not on the basis of a  police report  but  on the basis of evidence taken before  the  Ma- gistrate, and, therefore, he says, t is a proceeding falling within s. 207(b).               Section  190(i)  and 207 of the Code  read  as               follows               "  190(1) Except as hereinafter provided,  any               Presidency Magistrate, District Magistrate  or               Sub-divisional   Magistrate,  and  any   other               Magistrate specially empowered in this behalf,               may, take cognizance of any offence-               (a)   upon  receiving  a  complaint  of  facts               which constitute such offence;               (b)   upon  a report in writing of such  facts               made by any police officer;               (c)   upon   information  received  from   any               person  other than a police-officer,  or  upon               his  own  knowledge or  suspicion,  that  such               offence has beer. committed."               "207.   In every inquiry before  a  Magistrate               where  the  case is triable exclusively  by  a               court of Session or               427 High  Court, or, in the opinion of the Magistrate, ought  to be tried by such Court, the Magistrate shall- (a)in  any proceeding instituted on a police report,  follow the procedure specified in s. 207A; and (b)in  any other proceeding, follow the procedure  specified in the other provisions of this Chapter." It  seems to us that s. 207(a) refers back to s.  190(1)(b); in  other words, the police reportmentioned in s. 207(a)  is the  report mentioned in s. 190(1) (b), and once  cognizance is  taken  under s. 190(1)(b), a  proceeding  is  instituted within s. 207(a).  Hidayatullah, J., speaking for the Court, while considering the interpretation of s. 251-A of the Code of  Criminal  Procedure in Praviu Chandra Mody v.  State  of Andhra Pradesh() observed as follows               "In  our judgment the meaning which is  sought               to  be  given  to a  ’police  report’  is  not               correct.   In  s. 190, a distinction  is  made               between the classes of persons who, can  start               a  criminal  prosecution.   Under  the   three               clauses of s. 190(1), to which we have already               referred,   criminal   prosecution   can    be               initiated (i) by a police officer by a  report               in  writing,  (ii) upon  information  received               from any person other than a police officer or               upon   the  Magistrate’s  own   knowledge   or               suspicion,   and   (iii)  upon   receiving   a               complaint  of  facts.  If the report  in  this               casefalls within (i) above, then the procedure

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             under  s. 251A, Criminal Procedure Code,  must               be  followed.  If it falls. in (ii)  or  (iii)               then  the  procedure under  s.  252,  Criminal               Procedure Code, must be followed.  We are thus               concerned  to find out whether the  report  of               the police officer in writing in this case can               be  described as a ’complaint of facts’ or  as               ’information  received’ from any person  other               than a police officer.’ That it cannot be  the               latter   is   obvious   enough   because   the               information  is  from a police  officer.   The               term  ’complaint’ in this connection has  been               defined by the Code of Criminal Procedure  and               it  ’means  the allegation made orally  or  in               writing  to a Magistrate, with a view  to  his               taking  action  under  the  Code,  that   some                             person, whether known or unknown, has committed               an offence, but it does not include the report               of a police officer.’ [see s. 4(1)(h].               It,  therefore, follows that s. 252,  Criminal               Procedure Code, can only apply to those  cases               which  are  instituted  otherwise  than  on  a               police report, that is to say, upon complaints               which  are not reports of a police officer  or               upon  information received from persons  other               than a police officer." (1)  [1965]1 S.C.R. 269.               428 Similarly  S.  207(b)  Can  Only  apply  if  the  case   was instituted ,otherwise than on a police report.  On the facts of  this case it is quite clear that the case does not  fall within  s.  190(1)(a)  or  s.  190(1)(c)  because  the  Sub- divisional Magistrate had taken cognizance of the offence on April 5, 1961.  But, says Mr. Latifi, that though it is true that  cognizance was taken on April 5, 1961, the  cognizance was  taken of the offence as far as the other  accused  were concerned and not as far is the appellant was concerned,  as a  Matter of fact the appellant had been rightly or  wrongly discharged. in our opinion once cognizance has been taken by the  Magistrate, he takes cognizance of an offence  and  not the offenders; once he takes cognizance of an offence it  is his  duty to find out who the offenders really are and  once he comes to the Conclusion that apart from the persons  sent up by the police ’Some other persons are involved it is  his duty to proceed against those persons.  The summoning of the additional  accused is part of the proceeding  initiated  by his taking cognizance of an offence.  As pointed out by this Court  in Pravin Chandra Mody v. State Of Andhra  Pradesh(1) the term "complaint" would include allegations made  against persons unknown.  If a Magistrate takes -cognizance under s. 190(1)(a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted ,even though persons  who  had committed the offence were not  ’known  at that  time.  The same position prevails, in our view,  under s. 190(1)(b). Mr. Sachthey, the learned counsel for the respondent brought -to  our  notice some decisions which have  taken  the  same view.   The Calcutta High Court in Saifar v. State  of  West Bengal( ), following the Full Bench decision of the Judicial Commissioners, Sind, in Mehrab v. Emperor( ), held that when a Magistrate takes ’Cognizance under s. 190(1)b) on a police report he takes cognizance of the offence and not merely  of the  particular  persons  named in  the  charge  sheet,  and therefore, the Magistrate is entitled ,to summon  additional

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accused  against  whom  he considers  that  there  was  good evidence,  after perusal of the statements recorded  by  the police  under s. 161 and the other documents referred to  in s. 173 even without examination of witnesses in court. The  Punjab  High  Court in Fatta v. The  State(4)  and  the -Allahabad  High  Court in Ali Ullah v.  The  State(5)  also expressed a :similar view. In the result the appeal fails and is dismissed.      V.P.S.    Appeal    dismissed. (1) [1965] 1 S.C.R. 269.      (2) A.I.R. 1962 Cal. 133. (3) A.I.R. 1924 Sind 7 1.     (4) A.I.R. 1964 Pun. 351. (5)  [1963] 1 Cr.  L.J. 66. 429